Lessons in Censorship

How Schools and Courts Subvert Students’ First Amendment Rights

Catherine J. Ross

• Publisher: Harvard University Press
• Year: 2015
• Print ISBN: 9780674057746
• eBook ISBN: 9780674915770
• Topic: Law
• Subtopic: North American History
• Index: Law

American public schools often censor controversial student speech that the Constitution protects. Lessons in Censorship brings clarity to a bewildering array of court rulings that define the speech rights of young citizens in the school setting. Catherine J. Ross examines disputes that have erupted in our schools and courts over the civil rights movement, war and peace, rights for LGBTs, abortion, immigration, evangelical proselytizing, and the Confederate flag. She argues that the failure of schools to respect civil liberties betrays their educational mission and threatens democracy.

From the 1940s through the Warren years, the Supreme Court celebrated free expression and emphasized the role of schools in cultivating liberty. But the Burger, Rehnquist, and Roberts courts retreated from that vision, curtailing certain categories of student speech in the name of order and authority. Drawing on hundreds of lower court decisions, Ross shows how some judges either misunderstand the law or decline to rein in censorship that is clearly unconstitutional, and she powerfully demonstrates the continuing vitality of the Supreme Court's initial affirmation of students' expressive rights. Placing these battles in their social and historical context, Ross introduces us to the young protesters, journalists, and artists at the center of these stories.

Lessons in Censorship highlights the troubling and growing tendency of schools to clamp down on off-campus speech such as texting and sexting and reveals how well-intentioned measures to counter verbal bullying and hate speech may impinge on free speech. Throughout, Ross proposes ways to protect free expression without disrupting education.

PART I

The Emergence of Free Speech Doctrine

CHAPTER 1

Think as You Will and Speak as You Think

Those who won our independence . . . believed liberty to be the secret of happiness and courage to be the secret of liberty.

—Whitney v. California (1927) (Brandeis, J., concurring)

Freedom of speech did not begin to develop into a clear legal doctrine until the 1920s and 1930s. The Supreme Court had no occasion to interpret the meaning of the Speech Clause until the twentieth century because, after the short-lived Sedition Act of 1798, the federal government did not enact a single law restraining or punishing speech for more than a century. Like the rest of the Bill of Rights, the First Amendment adopted in 1791 initially applied only to the federal government, though the Supreme Court eventually held that it restricted the acts of state and local government as well.

Shortly after it began parsing the Speech Clause in the early 1920s, the Supreme Court extended speech rights to schoolchildren in the landmark 1943 case of West Virginia State Board of Education v. Barnette. The Court returned to the problem of free speech in public schools in the 1960s in Tinker v. Des Moines Independent Community School District, where it began to carve out a distinct set of principles to govern speech in school even as it reiterated the robust vision of citizenship and liberty embedded in Barnette two decades earlier.¹

The Speech Clause Emerges

The brilliance of the Speech Clause lies in its conciseness. Embedded in the Constitution’s First Amendment, it states, “Congress shall make no law . . . abridging the freedom of speech.” Our understanding of the Speech Clause has developed through what lawyers call the “common law method,” a case-by-case approach in which law is clarified in the light of specific questions and facts that arise in concrete controversies. That approach explains why the Supreme Court has never attempted to craft a unified theoretical framework for the Speech Clause, fashioning instead different standards and tests depending on where the speech takes place and in what medium it appears. If this approach at its best offers robust flexibility, it also impedes the development of categorical rules that provide clarity and comfort. These same strengths and drawbacks are evident in the jurisprudence governing student rights in schools.

The Espionage Act of 1917, which criminalized criticism of the government and dissent during World War I and led to 1,900 prosecutions, generated the first round of cases about freedom of speech to reach the federal courts. A handful of those convictions reached the Supreme Court. All the cases involved opposition to U.S. entry into the war or to military conscription.² During this period, the Court took a cramped view of speech rights; it never ruled for the individual who challenged the power of the state.

Justices Holmes and Brandeis—early champions of free expression—repeatedly found themselves at odds with the majority of their colleagues on the bench. Cosigning each other’s opinions, they launched their string of dissents about speech rights in the 1919 case of Abrams v. United States, the fourth Espionage Act case the Court heard. Abrams and three other left-wing Russian immigrants who were his codefendants had thrown leaflets off a rooftop on the lower east side of Manhattan, urging a general strike in opposition to the U.S. decision to send troops into Russia following the Bolshevik revolution. The government claimed this small-scale pamphleteering undermined the United States in its conflict with Germany.³

Justice Holmes found it ludicrous that “a silly leaflet by an unknown man, without more” could threaten American interests. He was convinced that Abrams and his codefendants had been convicted purely for their unpopular beliefs, not because they threatened national security.⁴

Holmes’s eloquent dissent introduced the concept now known as the “marketplace of ideas.” Like John Stuart Mill, who argued in On Liberty that even false arguments may contain partial truths that help society test ideas, Holmes insisted that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This test of truth carried a profound corollary and an implicit warning: The best response to “bad” speech is more and better speech, and so “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”⁵

Not long after the Supreme Court began its interpretive foray into the Speech Clause, it held that the clause applied to all levels of government, including states and localities.⁶ That decision was a prerequisite for finding that freedom of expression applies in public schools. Since then, the majority of speech cases considered by the Supreme Court have involved challenges to state and local laws or the way in which the representatives of state and local governments—a group that includes all those who run or work for public schools—carry out the law.

Despite this advance, the Court remained largely unresponsive to the speech claims of individuals for another decade, as Brandeis and Holmes continued to press for a loftier view of the Speech Clause. Although in 1927 Brandeis agreed with the majority in upholding a fifteen-year prison sentence imposed on Anita Whitney, a socially prominent Californian who helped found the Communist Labor Party of California, he wrote separately to argue that the Speech Clause is not limited to concerns about robust journalism, national security, or political activity. The Founders, he stressed, were courageous dissenters themselves who “valued liberty as both an end and a means” in which “the final end of the state was to make men free to develop their facilities.” Liberty, in the Founders’ view, was not limited to the formalities between citizens and government: They “believed liberty to be the secret of happiness and courage to be the secret of liberty.”⁷

Joined by Justice Holmes, Brandeis went on to explicate Holmes’s “marketplace of ideas” and explain the essential role of free speech in democracies. In what many consider the best summary ever written about why freedom of speech matters, Brandeis recounted that the Founders

believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people. . . . Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.⁸

Brandeis and Holmes were not destined to remain in the minority. Indeed, the groundwork laid in their separate opinions remains the dominant view of the Speech Clause and its constitutional significance today. That reversal of positions offers a classic example of the powerful role that dissents and concurring opinions can play in crafting a coherent alternative that ultimately triumphs.

Tellingly, just four years after it decided Whitney v. California, the Supreme Court for the first time overturned a statute on the ground that it violated the Speech Clause, initiating a new era more protective of speech rights. That same year, 1931, the Supreme Court enunciated one of the first major principles of Speech Clause doctrine: It rejected prior restraint of speech in all but “exceptional cases.”⁹ This means that under the rare circumstances when the government may inhibit speech, the “marketplace of ideas” almost always requires that the speech be allowed to flow, even if the Constitution allows the state to punish the speaker after the fact.

The Court was following Sir William Blackstone, the esteemed British legal commentator, who had argued that the crux of liberty of the press lay in “no previous restraints upon publications, and not in freedom from censure” afterward where publication violated the law, a view incorporated in the First Amendment. Suppression prior to publication, the Supreme Court has made clear, “is of the essence of censorship.”¹⁰ The distinction remains important in the school setting because school officials inhibit student speech both when they engage in prior restraint and when they punish students for what has already been communicated.

Turning Point: Barnette and the Menace of “Village Tyrants”

Even as the Supreme Court worked to flesh out the meaning of free speech, it recognized that speech rights extend to schoolchildren. West Virginia State Board of Education v. Barnette, decided in 1943, had a profound impact on the jurisprudence, if not the practical reality, of student rights.¹¹ Barnette pitted reflexive patriotism against the rights of students who refused to mouth sentiments they did not believe.

West Virginia had expelled the Barnette sisters from school for refusing to salute the flag and say the Pledge of Allegiance. As Jehovah’s Witnesses, the girls explained, the pledge requirement offended their religious beliefs. The state asserted the expulsion served “national unity” and “security.”¹²

The state’s assertions had triumphed in a series of earlier Supreme Court decisions, culminating in Minersville School District v. Gobitis, handed down in 1940 as World War II was breaking out in Europe. The Court had consistently rejected claims that young Jehovah’s Witnesses had a constitutional right to religious exemptions from reciting the Pledge of Allegiance. The Court’s deference to school districts rested less on its view of the legitimacy or wisdom of the pledge requirements than on a reluctance to supervise education, a preference for limited judicial review, and a vain hope the state legislatures and school authorities would reconsider their position on the mandatory pledge and do the right thing by allowing children to remain in school.¹³

Dissenting in Gobitis, Justice Stone urged the Court to acknowledge the children’s free speech rights. The mandatory pledge law, he stated, “does more than suppress freedom of speech, and more than prohibit the free exercise of religion” in violation of the First Amendment. The state “seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain.” Echoing both Holmes and Brandeis, Stone elaborated: “The guaranties of civil liberty are but guaranties of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them. They presuppose the right of the individual to hold such opinions as he will and to give them reasonably free expression, and his freedom, and that of the state as well, to teach and persuade others by the communication of ideas. The very essence of the liberty which they guaranty is the freedom of the individual from compulsion as to what he shall think and what he shall say, at least where the compulsion is to bear false witness to his religion.”¹⁴

Subsequent events showed the futility of the Gobitis majority’s hopes that the states would take a less draconian approach to Jehovah’s Witness children. Instead, the Gobitis decision encouraged a spate of new pledge requirements in states and localities and emboldened strict enforcement of compulsory pledge laws. Throughout the country, thousands of Jehovah’s Witnesses were expelled from public schools. The American Bar Association reported that some of the children “get piecemeal education from their parents; some are sent away to a distant sectarian school; others are torn from their homes and committed for the rest of their adolescence to institutions for juvenile delinquents.”¹⁵

Parents who couldn’t afford to pay for private schools were at risk of being prosecuted for violating compulsory education laws. Mobs, egged on by the American Legion in some locales, attacked the Witnesses, outraged by their oddity and their refusal to say the pledge or serve in the military. The vigilantes, who sometimes included local law enforcement officers, beat Witnesses, poured castor oil down their throats, destroyed their cars, burned their homes, and in one instance publically castrated a Witness.¹⁶

In an unusual somersault, the Barnette Court reversed its decision in Gobitis after only three years. The Court’s turnabout could not be attributed to the different facts in Barnette an...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Introduction: Strangling the Free Mind
• Part I: The Emergence of Free Speech Doctrine
• Part II: Pushing Porous Boundaries
• Part III: Tinker Redux
• Conclusion: Living Liberty
• Appendix: The Federal Judicial Circuits
• Notes
• Acknowledgments
• Index